Introduction

1 In this case, the Applicant, the Council of the New South Wales Bar Association (‘the Bar Association’), filed an Application under the Legal Profession Act 2004 (‘the LP Act’) on 17 January 2006, seeking (a) a finding that the Respondent barrister, Alexander Stanislaw Howen, (‘the Barrister’) had engaged in professional misconduct or unsatisfactory professional misconduct by virtue of conduct outlined in the Application; (b) one or more orders within subparagraphs (a), (b), (c) or (e) of s 562(2) or subparagraphs (a) or (b) of s 562(4) of the LP Act; (c) an order that the Tribunal’s decision be published; (d) an order for costs; and (e) such further or other order as the Tribunal thought fit.

2 Subparagraphs (a), (b), (c) and (e) of s 562(2) of the LP Act provide, respectively, for orders removing the name of the practitioner concerned from the local roll, suspending or cancelling the practitioner’s local practising certificate, deferring the issue of a local practising certificate and reprimanding the practitioner. Subparagraphs (a) and (b) of s 562(4) provide, respectively, for the imposition of a fine and for an order that the practitioner undertake and complete a specified course of further legal education.

3 The Application was filed following an investigation, carried out by a Professional Conduct Committee of the Bar Association, of a complaint made to it on 8 May 2003 by Mr Roderick Best. Mr Best was the Director, Legal Services, of the Department of Community Services (hereafter ‘DOCS’).

4 On 1 December 2005, the Bar Association resolved that the matter should be referred to the Tribunal.

5 The Application by the Bar Association set out two Grounds. Ground 1 was that the Barrister, in District Court proceedings conducted between 30 September 2002 and 22 January 2003, had alleged matters of fact amounting to serious misconduct against DOCS in the absence of a belief, held on reasonable grounds, that available material by which the allegations could be supported provided a proper basis for them. Ground 2 was in identical terms, except that the allegation claimed to have been made by the Barrister was against Mr Barry Ward, who was then the Acting Director, Child and Family Services, South West Metropolitan Region, DOCS.

6 Each of the two Grounds was supported by Particulars, set out in three subparagraphs. On the final day of hearing, however, Mr Mahony SC, senior counsel for the Bar Association, indicated that the Association no longer pressed the third subparagraph with regard to each of the Grounds.

7 The wording of the remaining Particulars is important and must be set out in full. The Particulars to Ground 1, excluding the subparagraph no longer pressed, stated:-

(a) On 15 October 2002, the Barrister alleged that an appeal by [DOCS] to the District Court from a decision of the Children’s Court pursuant to the Children (Care and Protection) Act 1987 (NSW) was an abuse of process brought for collateral reasons not to do with the child the subject of the proceedings (“the child”), but with the reputation of an officer about whom adverse findings had been made in the Children’s Court (“the DOCS officer”).

(b) On 6 November 2002, the Barrister alleged that in the appeal to the District Court, [DOCS] had shown contempt for the Deputy Chief Magistrate of the Children’s Court and lied, in relation to the role of the DOCS officer in the ongoing management of the child’s case.

(a) On 15 October 2002, the Barrister alleged that the authorisation by Mr Ward of the appeal to the District Court was an abuse of process made for collateral reasons not to do with the child the subject of the proceedings (“the child”), but with the reputation of an officer about whom adverse findings had been made in the Children’s Court (“the DOCS officer”).

(b) On 6 November 2002, the Barrister alleged that in the appeal to the District Court, Mr Ward had shown contempt for the Deputy Chief Magistrate of the Children’s Court and lied, in relation to the role of the DOCS officer in the ongoing management of the child’s case.

10 In addition, the Barrister denied the allegations made in Ground 1 and Ground 2 of the Application. With respect to the Particulars, he admitted that specified passages in a transcript of the relevant District Court proceedings, which formed part of the evidence filed by the Bar Association, were an accurate record (subject to one non-controversial amendment) of oral submissions that he had made in the proceedings. But he denied that in advancing those submissions he had made the allegations set out in the Particulars. In effect, he pleaded that these Particulars did not accurately reflect what he actually said in the District Court.

11 The Amended Reply contained two further pleadings. With respect to the allegations set out in Particulars (a) to each of the two Grounds, the Barrister pleaded, in the alternative, that if the relevant parts of his oral submissions did amount to these allegations, he believed on reasonable grounds that available material by which the allegations could be supported provided a proper basis for them. With respect to the allegations set out in Particulars (b) to each of the Grounds, he pleaded, in the alternative, that he believed on reasonable grounds that available material by which all allegations made by him in the identified part of the transcript could be supported provided a proper basis for them.

12 The passages in the transcript of the District Court proceedings to which the Amended Reply referred are set out below, along with a number of other passages. Page and line references are added.

Relevant facts

13 Except as to a few specific matters, there was no dispute as to the relevant facts. The following account of them draws principally on two affidavits, sworn in these proceedings by the Barrister on 8 January and 12 February 2007 respectively, and on a chronology and a factual summary handed up by Mr Mahony.

14 The Barrister acted for an Indian husband and wife in proceedings in the Children’s Court, in which DOCS sought a care order in respect of their daughter. He appeared in subsequent proceedings relating to the child in the Supreme Court and in the District Court. In the District Court proceedings (which are the proceedings referred to in the Application), he acted for the wife only. All of these proceedings took place in closed court.

15 At a directions hearing in the present proceedings, held on 27 June 2006, the Tribunal made a consent order under s. 75(2) of the Administrative Decisions Tribunal Act 1997 prohibiting the disclosure of any material that might identify, or lead to the identification of, the husband, the wife or the child. That order was continued during the three days of substantive hearing, and pseudonyms – Mr X, Mrs X and Victoria – were used to describe them. In addition, the order was extended to prohibit disclosure of material that might identify, or lead to the identification of, the members of a family who became foster carers of Victoria.

16 Victoria was born in India on 30 January 1999. Between that date and 5 October 1999, she suffered five serious injuries, three of which occurred before her arrival in Australia, together with her parents, on 24 August 1999 and two of which occurred in Australia. They included injuries to her head, causing her to suffer significant developmental delay and to be in need of substantial rehabilitative assistance, at least in the short term.

17 The Children’s Court proceedings. On 29 October 1999, DOCS applied to the Children’s Court for a care order with respect to Victoria under s. 57(a) of the Children (Care and Protection) Act 1987. DOCS sought a finding that, as at the date of its application, Victoria was in need of care, due to abuse or the likelihood of abuse.

18 In its application, DOCS sought an order that Victoria be made a ward of the state until she turned 18. On 4 November 1999, the Court ordered that she be placed in the care of DOCS on an interim basis. Some access was later granted to Mrs X.

19 The Barrister first appeared on behalf of Mr and Mrs X at a hearing in the Children’s Court at Campsie on 18 November 1999. Between 12 May 2000 and 28 February 2002, he continued to represent them during 40 days of hearing before Deputy Chief Magistrate Syme. His clients opposed the making of the orders sought by DOCS. Victoria was separately represented.

20 On 19 September 2000, Mr X left Australia. So far as the evidence discloses, he has not returned.

21 On 29 August 2001, the Barrister attended a meeting, which he described in his first affidavit as a ‘form of at least informal mediation’. He made a file note of this meeting. Those present also included legal representatives of the other parties, Mrs X and Mr Barry Ward. Mr Ward was the supervisor of Ms Nada Coorey, a senior officer of DOCS who had responsibility for the case and who is the officer referred to subparagraphs (a) of the Particulars.

22 In his first affidavit and in cross-examination in these proceedings, the Barrister stated that he formed the impression that Mr Ward was not seriously considering any compromise of the stance taken by DOCS. He said that after he criticised Ms Coorey’s interaction with Mrs X at this meeting Mr Ward addressed him angrily, using words such as ‘I’m not going to tolerate this’. Mr Ward then ‘stormed out of’ the meeting. The Barrister formed the opinion that this behaviour of Mr Ward ‘killed off a chance’ to reach a mediated settlement. This account by the Barrister was not challenged in cross-examination or by conflicting evidence.

23 The judgment delivered by the Children’s Court. On 1 July 2002, Deputy Chief Magistrate Syme delivered a carefully reasoned judgment, comprising more than 100 pages. The Barrister described it as the most carefully reasoned judgment that he had encountered in a care matter. Magistrate Syme made orders placing Victoria in the custody of Mrs X until she turned 18, providing for supervision by DOCS for a period of one year and requiring certain undertakings from Mrs X, which Mrs X agreed to furnish.

24 In her judgment, Magistrate Syme found that Mr X had been responsible as perpetrator for the very serious injuries suffered by Victoria in India and that Mrs X had been aware of his involvement. She assessed Mrs X as ‘not necessarily a person of truth, but a person who will say what she believes is going to be in her best interests’. She referred to Mrs X’s ‘arrogance’, her refusal to accept ‘secondary responsibility’ for the injuries inflicted in India and her ‘lack of complete understanding of the issues before the Court’. She found that Mrs X had given ‘long winded and evasive’ answers to questions about Mr X’s care of Victoria and concluded that Mrs X had displayed a ‘lack of candour’ out of a desire to protect Mr X.

25 Magistrate Syme indicated more than once in her judgment that a bad relationship had developed between Mrs X and Ms Coorey. She also made numerous criticisms of Ms Coorey’s conduct. They included references to Ms Coorey’s ‘lack of objectivity’, which had ‘permeated these proceedings’; the ‘one-sided’ nature of a ‘section 74 report’ that she had prepared; her ‘blatant bias’, as evidenced by her including in this report a description of India as a ‘Third World country’; her ‘interpretation of evidence before she put it to the Court’; her appearing to be ‘more interested in punishing the perpetrator over other considerations relating to the welfare of the child’; her putting a ‘negative gloss’ on her observations of Mrs X’s handling of Victoria during access; her having adopted a ‘combative attitude’, and having been ‘overly critical’ and ‘overly judgmental’, vis-a-vis Mrs X; her indicating clearly by facial expressions what she felt about the evidence being given during the hearing (thereby angering and intimidating Mrs X); and the fact that she ‘became defensive of her views and position throughout the proceedings’. One of the undertakings that the orders made by Deputy Chief Magistrate Syme required from Mrs X as a condition of her being granted custody of Victoria was that she should ‘cooperate with DOCS workers in its supervision of the case, provided that DOCS officer is not Ms Coorey’.

26 The judgment by Magistrate Syme contained the following observations on the section 74 report that Ms Coorey had prepared, and on the stance that DOCS had adopted:-

Many of the conclusions in the s74 Report are not borne out by the findings of this court. It was disappointing then, that the Department [i.e., DOCS] took such a hard line approach in the s74 Report and recommended only a long term Wardship Order. This closed mind attitude has resulted in the Court proceedings being far longer than they otherwise might have been. The Department, in my view, did not properly investigate the alternatives to a long term Wardship Order, such as a short term Wardship Order or an order for Custody with Supervision. Had the Department done so, then it is quite likely that the last year of adjourned hearings in this matter, would have been unnecessary.

… in the light of the proceedings over the last two years, [Mrs X] feels rightly suspicious of the Department’s motive in their desire to be involved with the process. With the Court proceedings completed, she may no longer feel this need.

The Department have, through their agent, Ms Coorey, been in the past, overly critical of [Mrs X] and overly judgmental of her position. I can have no confidence that they would start to be objective now, although there do appear to be some workers within the Department who are capable of being objective. I refer specifically to some of the Access Supervisors.

A Wardship Order entails handing over all aspects of Guardianship Control to the Minister. In the context of this case it is difficult to have confidence that the Court’s recommendations would be followed enthusiastically.

28 In his affidavits, the Barrister testified that in the days immediately following the delivery of this judgment Mrs X told him (a) that DOCS took no immediate steps to deliver Victoria to her and (b) that she believed that DOCS was deliberately not complying with the Court’s orders. He formed the opinion that Mrs X’s view of the motives of DOCS may have been correct and that the officers of DOCS who were probably responsible for the steps taken by DOCS were Mr Ward and Ms Coorey.

29 Attached to the Barrister’s first affidavit were copies of file notes maintained by Ms Coorey, recording conversations with Mrs X on 4 July 2002. According to the file notes, a ‘distressed’ Mrs X stated that she was aware that DOCS intended to file an appeal, and accused DOCS of ‘taking advantage of her niceness’ by allowing Victoria to remain with foster carers. Mrs X also accused Ms Coorey of being ‘behind the decision to appeal’. Ms Coorey replied that ‘Legal Branch makes these decisions’ and that the matter was ‘going back for appeal on points of law’.

30 The Supreme Court proceedings. On 5 July 2002, DOCS filed a summons in the Supreme Court seeking an order that the decision of the Children’s Court be quashed. It also applied for and obtained, with no opposition from Mr and Mrs X, orders by Palmer J granting a temporary stay of the orders of the Children’s Court, declaring Victoria to be a ward of the Supreme Court, providing for access by Mrs X and requiring Mrs X (who had indicated a desire to return to India) to surrender her passport.

31 On 19 July 2002, Palmer J, having heard further argument from the parties’ representatives (including the Barrister), held that any challenge that DOCS wished to make to the decision of the Children’s Court should be by appeal to the District Court. He based this ruling on s. 91 of the Children and Young Persons (Care and Protection) Act 1998, which had superseded the Children (Care and Protection) Act 1987 and which provided for appeals de novo to be taken to the District Court. While noting that urgent action was highly desirable in the case, he expressed the opinion that the parens patriae jurisdiction of the Supreme Court should not be invoked as a means of bypassing this statutory appellate procedure, save in the most extraordinary circumstances. He accordingly ordered that the Supreme Court proceedings should be transferred to the District Court and directed that they should be given the highest priority in listing in that Court.

32 Palmer J also noted, with some concern, that Mrs X had not yet surrendered her passport. He reiterated his former order that she should do so, then noted that she had in fact done so on that day. He continued the temporary stay order that he had previously made.

33 In his second affidavit, the Barrister stated that at this time he formed the opinion that the reason why DOCS tried to invoke the parens patriae jurisdiction of the Supreme Court was that it wished to avoid having the evidence heard again and retested in a de novo hearing. He also agreed with Mrs X’s opinion that DOCS would continue to do all that it could to make Victoria a ward of the state.

34 During cross-examination, the Barrister stated that during the period when he acted for Mrs X he developed a ‘close professional rapport’ with her. But he denied that, at this stage of the proceedings, he ‘closely identified with’ her cause.

35 Another question raised with the Barrister during cross-examination was whether, in responding to correspondence from the Bar Association following the complaint in this matter, he had ever set out any instructions that he claimed to have received from Mrs X regarding her experience with DOCS. No clear answer was ever given to this question.

36 The District Court proceedings. On 22 July 2002, DOCS filed a notice of appeal in the District Court. Three days later, Garling DCJ ordered that the hearing be expedited and fixed it for a three-week hearing commencing on 30 September 2002. On 31 July 2002, Palmer J made orders continuing the Supreme Court stay order and vesting day-to-day care of Victoria in DOCS.

37 On 14 August 2002, Rolfe DCJ in the District Court dismissed an application by Mrs X for an order setting aside the stay order that Palmer J had made. The Barrister appeared for Mrs X. In the course of opposing this application, counsel for DOCS submitted that the application was an attempt to pervert the course of justice. After Rolfe DCJ had delivered his judgment, the Barrister requested that he deal with this submission. His Honour’s response was to point out that he had already indicated that he did not regard this submission as referring to counsel appearing for Mr and Mrs X or to the solicitors instructing counsel.

38 The hearing of the appeal by DOCS to the District Court commenced before Hogan ADCJ on 30 September 2002. At the outset, the Barrister advised the Court that he was no longer instructed to appear for Mr X and that he appeared for Mrs X only.

39 In the course of this hearing, the Barrister made the statements that have given rise to the present proceedings. We will now set out their content, together with other passages from the transcript that we consider to be relevant, including passages to which Mr Williams, counsel for the Barrister, drew to our attention. We will also summarise evidence relating to the surrounding circumstances, to the extent necessary. We will arrange this material with reference to the Particulars to the Application.

40 Evidence relating to subparagraphs (a) of the Particulars to Ground 1 and Ground 2. These subparagraphs alleged claims made by the Barrister on 15 October 2002 in the hearing in the District Court, to the effect that the appeal by DOCS and the authorisation of this appeal by Mr Ward were in each case an abuse of process, brought for collateral reasons not to do with Victoria, but with the reputation of Ms Coorey.

41 The passages italicised in the extracts from the transcript of the District Court proceedings set out below are the passages specifically relied on the Bar Association with regard to these two subparagraphs of the Particulars.

42 On 15 October 2002 (the tenth day of hearing), the Barrister cross-examined Mr Ward. At the time, he believed that in order to protect the reputation of DOCS and its officers, DOCS had elected not to call Ms Coorey as a witness, although she was present in court. She had not sworn an affidavit.

43 Early in the cross-examination (T848/43-52: i.e., District Court Transcript, p 848, lines 43-52), the Barrister asked Mr Ward regarding Ms Coorey’s role in Victoria’s case. Mr Ward said first that Ms Coorey ceased to be involved once ‘the Children’s Court matter’ had concluded. But he then said by way of correction that her role had continued ‘to some extent’. The exact words used at this part of the cross-examination are set out below at [57].

44 Mr Ward went on to say that he had discussed with Ms Coorey the question of ‘what direction the Department should take’ following the Children’s Court’s decision and that as a result of that discussion an appeal was recommended. The cross-examination then continued (T849/4-8) as follows:-

The Barrister: Who made the decision that the appeal be commenced?

Mr Ward: I did.

The Barrister: Did Ms Coorey have any input into that?

Mr Ward: Well, in the sense that we discussed it, yes.

The Barrister: I asked some preliminary questions to ascertain whether Ms Coorey had a role after the magistrate’s decision. She has a role, I’ll ask some more questions to explore that. Secondly, as to whether or not this application is brought in good faith by the Department is a matter that is relevant.

His Honour: It is brought, and I will determine it in light of the evidence in accordance with the statutory criteria.

The Barrister: The problem is, your Honour, part of what you are going to have to rely on, if the application is granted, is to accept risk assessments and advice from departmental officers. Whether or not this appeal is an abuse of process, they will be a relevant factor and whether or not this appeal is brought in good faith may also be a relevant factor. My questions are designed to seek some answers from Mr Ward as the senior manager responsible that may or may not lay a foundation for that submission to this court. Because if indeed it is the case that the department has brought this appeal not in good faith but in fact for collateral reasons not to do with the welfare of the child, then that is in fact a very serious matter and ought to be taken into account by this court.

If he’s going to make accusations of that sort, even if they be veiled ones like that, then he should have some basis for putting it forward. It is tantamount to alleging fraud or similar.

His Honour: All I can do, Mr Bourke, is to ask Mr Howen whether he has instructions within the relevant advocacy rules for making such an allegation.

The Barrister: Yes, your Honour.

His Honour: Do you?

The Barrister: I understand my obligations.

His Honour: Do you have instructions that enable you to make that allegation within the terms of the advocacy rules?

The Barrister: Yes, I do.

His Honour: Then I can’t stop you. Carry on.

The Barrister: Yes, your Honour.

49 In the ensuing cross-examination in the District Court proceedings (T852/18-31, T855/11-15, T856/139-146), the Barrister drew Mr Ward’s attention to a number of the criticisms made of Ms Coorey by Magistrate Syme and asked whether he took them into account in determining the extent, if any, to which Ms Coorey should remain involved in the Victoria case. The significant passages are set out below at [59 – 60].

50 The Barrister also asked Mr Ward how he reached his decision that DOCS should appeal against the judgment of the Children’s Court. Mr Ward replied (T857/28-38):-

I made the decision… on the basis of Magistrate Syme indicating that there was unacceptable risk and on my own belief that [Victoria] was a child who has suffered catastrophic injuries over a very short time in her young life between the ages of zero and nine months, both in India and in Australia, and that the solution that was put forward by the magistrate in the Children’s Court was in my view not sufficient to protect the interests of [Victoria], and on the basis of legal advice that I received from the Department’s legal branch that an appeal was justified.

The Barrister: Did you take into account in any way in your decision to appeal this matter protecting the reputation of a fellow officer?

Mr Ward: No.

The Barrister: Isn’t this what this is about, that a magistrate made devastating findings about Ms Coorey, didn’t she?

Mr Ward: She made adverse findings about Ms Coorey, yes.

The Barrister: If true, if those findings are true, would that concern you?

Mr Ward: Yes.

The Barrister: Would that concern you putting an officer like that, if those things are true, in charge of the extremely delicate task of informing a court about cases on behalf of the Department?

Mr Ward: Yes.

The Barrister: You simply just rejected what the magistrate said, didn’t you?

Mr Ward: No.

The Barrister: How did you form the view that you should not take into account the magistrate’s adverse findings about Ms Coorey?

Mr Ward: I did take into account the magistrate’s adverse findings about Ms Coorey.

The Barrister: How?

Mr Ward: Well, I saw that it was – it certainly posed a problem for the ongoing management of the case and that’s why I took over management of the case myself.

The Barrister: But she has a role, doesn’t she?

Mr Ward: Well, she has had a role since that time, as I said, in some of the more peripheral issues and some of the background stuff in terms of the preparation of the ministerial – yes.

The Barrister: The application for this appeal, which you authorised, is not about the protection of a child, is it?

Mr Ward: Yes, it is.

The Barrister: This is just simply - -

His Honour: You’ve already put that.

The Barrister: I’m coming to the next question, your Honour.

The Barrister: This is about protecting a mate, isn’t it?

Mr Bourke: Object; it’s been answered twice.

The Barrister: This is about using unlimited resources of public funds - -

Mr Bourke: Objection - -

The Barrister: I haven’t finished the question, thank you.

Mr Bourke: Sorry.

The Barrister: This is about using the unlimited resources of public funds to win at all costs for the purposes of simply rescuing the tarnished reputation of an officer about whom adverse findings have been made. Isn’t that right?

Mr Ward: No.

Objection (Bourke). Allowed.

The Barrister: Yeah, the answer is no.

Can I just add one more submission, please, your Honour. I am concerned that, because I’m making strong and robust, either, suggestions or allegations in relation to the Department and Mr Ward personally at this stage, Mr Ward in all fairness has to have the chance to reply. If I’m going to make a submission about his ethics in the management of this matter, I’ve got an obligation to put it to him.

Furthermore, I’ve made some submissions at the very early parts of the proceedings, your Honour, about the motivations for this appeal. My client’s concerns as to why this appeal has been commenced remain.

56 Evidence relating to subparagraphs (b) of the Particulars to Ground 1 and Ground 2. These subparagraphs alleged that claims were made by the Barrister on 6 November 2002 during the hearing in the District Court, to the effect that DOCS and Mr Ward had shown contempt for the Deputy Chief Magistrate of the Children’s Court and had lied in relation to the role of Ms Coorey in the ongoing management of the child’s case.

57 As mentioned above at [43 – 44], on 15 October 2002, the Barrister asked Mr Ward near the beginning of his cross-examination whether Ms Coorey continued to have any role in the matter of Victoria after the delivery of the Children’s Court judgment. The exact words used by the two of them are significant in the present context. The first important extract from the transcript is as follows (T848/43-52):-

The Barrister: For how long was Nada Coorey the departmental officer in charge of managing the [Victoria] matter after [Victoria] was taken from the parents’ care?

Mr Ward: From that time in late 1999 until the conclusion of the Children’s Court matter.

The Barrister: Is it not true to say that – I’ll amend that question, Mr Ward. Nada Coorey’s role continued in this matter after the Magistrate’s decision, didn’t it?

Mr Ward: Yes. To some extent, yes.

The Barrister: Are you aware of the personally adverse findings made by the magistrate against Ms Coorey?

Mr Ward: Yes.

The Barrister: In the light of those adverse findings, pending the outcome of an appeal, did you consider removing her from any contact with the [Victoria] matter?

Mr Ward: Yes. As I said to you just a few minutes ago, Ms Coorey is not the officer in charge of this matter at this time. I am, and I am the direct supervisor of the caseworker… who is dealing with this matter.

The Barrister: With respect, sir, could you return to my question. My question wasn’t about who’s in charge. I’ll repeat the question. Did you consider, in the light of the findings by the magistrate, pending the outcome of the appeal, removing Ms Coorey from all contact with the [Victoria] matter?

Mr Ward: Yes.

The Barrister: Did you do so?

Mr Ward: Yes. Well, yes.

The Barrister: That is not true, is it?

Mr Ward: Well, it’s not true in the sense that, as I said, I had a consultation with her after the case and I’ve had, you know, a number of conversations with her about it, but in terms of her direct case management of this matter, she’s no longer the case manager.

The Barrister: Is she dealing with Centacare?

Mr Ward: I don’t think so. I wouldn’t think so.

The Barrister: Is she in contact with [the foster carers]?

Mr Ward: You mean now.

The Barrister: Since the magistrate’s decision.

Mr Ward: Yes. It’s probably the case that she’s had contact with the [foster carers].

The Barrister: Is she involved with making any arrangements with respect to contact?

Mr Ward: No. Rebecca Packman is involved.

The Barrister: That’s not true, is it?

Mr Ward: Well, that’s as far as I understand it…

The Barrister: You understand that [Mrs X] has had contact pursuant to court orders since 5 July when the matter was before the Supreme Court and today, don’t you?

Mr Ward: That [Mrs X] has had contact? Yes.

The Barrister: My question to you is whether Ms Coorey has had an involvement in making any of the arrangements or decisions relating to that contact.

Mr Ward: Are you talking about the frequency of the contact or are you - -

The Barrister: Any aspect of it, sir

Mr Ward: To be honest, I’m not sure.

The Barrister: Did you delegate to Ms Coorey any role in providing briefing notes to the Minister recently – as in the last couple of months – in relation to this matter?

Mr Ward: Yes.

The Barrister: Did you take into account, when delegating the matter to Ms Coorey, that the magistrate made findings of bias in relation to Ms Coorey?

Mr Ward: I don’t remember the word “bias” being used in relation to Ms Coorey.

The Barrister: What do you remember about the findings in relation to Ms Coorey?

Mr Ward: I remember a comment of lack of objectivity.

The Barrister: Isn’t that a handicap if true?

Mr Ward: Yes. It certainly was the magistrate’s opinion.

….

The Barrister: … if true, would that be a problem when providing a briefing note to the Minister, which I think we’d fairly say should be objective?

…

Mr Ward: All briefing and ministerial correspondence go through myself. So if I have any concerns about what’s in a document then I would amend it.

The Barrister: Did you ignore what the magistrate said?

Mr Ward: No.

The Barrister: In what way did you take into account what the magistrate said?

Mr Ward: Well, only the sense that the magistrate has made some comments that perhaps in this case, Ms Coorey wasn’t as objective as she should have been.

62 This memorandum dealt amongst other things with interim orders, made by the Supreme Court, for Mrs X to have twice-weekly access to Victoria. It spelt out the arrangements for Ms Amy O’Hehir, a caseworker employed by DOCS, to supervise these visits under the supervision of Ms Tamara O’Sullivan, another employee of DOCS. It contained this statement: ‘ The impact of having restoration type contact in this interim period is difficult for me to determine since I am not directly involved in the monitoring of the case.’

63 This memorandum formed part of a quantity of material produced by DOCS to the District Court. When asked during his own cross-examination whether he had seen it before cross-examining Mr Ward, the Barrister replied that he may have, but that he could not remember.

64 In the District Court proceedings, the Barrister cross-examined Ms O’Hehir. Relevantly for present purposes (see T1196/25-1198/42), she testified (a) that in this particular case (but in no others in which she was involved) she reported to Ms Coorey; (b) that Ms Coorey and Ms O’Sullivan had instructed her to observe everything that Mrs X and Victoria did during the access visits provided for in the Supreme Court’s orders; and (c) that in August 2002 she had sent to Ms Coorey, at Ms Coorey’s request, a one-page summary of ‘any issues or concerns’ that she had about Mrs X’s care of Victoria during these visits.

65 Copies of a ministerial briefing note (a seven-page document) referred to in the extract from the District Court transcript quoted above at [59] and of an associated one-page summary sheet were in evidence in these proceedings. Both were dated 1 August 2002 and had a heading indicating that they related to a forthcoming meeting between the Minister responsible for DOCS and the Consul General of India, at which the case of Victoria would be discussed. They contained an outline of what had happened so far in Victoria’s case. They did not refer at all to Magistrate Syme’s criticisms of Ms Coorey. The summary sheet, but not the briefing note itself, bore a notation to the effect that it had been prepared by Ms Coorey.

66 In cross-examination, the Barrister was asked why the briefing note, but not the summary sheet, was annexed to his own affidavit. It was put to him that at the time when he appeared in the District Court he must have had access to both documents. This issue is significant because in the summary sheet, but not the briefing note, it was stated that the appeal to the District Court had been lodged ‘on advice from the Crown Solicitor’. The Barrister eventually conceded that before cross-examining Mr Ward he must have read the summary sheet containing this statement. He added, however, that it did not follow that at the time he believed the statement to be true. He also denied that he had deliberately omitted to annex the summary sheet to his affidavit in order to strengthen his case in these proceedings.

67 On 6 November 2002, DOCS closed its case in the District Court hearing (see T1774/11). The Barrister tendered the transcript of Ms Coorey’s evidence before the Children’s Court (T1775/39). He then made a long submission to the effect that Ms Coorey should be called as a witness and that he should be given the opportunity to cross-examine her (T1775/44 – 1782/51).

68 During this submission, he made a sustained attack on the manner in which Ms Coorey had handled the Victoria case. In these reasons, we will not set out the full text of this submission, as much of it simply repeated in very strong terms allegations that the Barrister had already made about the handling of Victoria’s case by DOCS and, in particular, by Ms Coorey. We will reproduce only some extracts, with the most significant passages italicised.

69 These extracts include the statements that constitute what Mr Mahony called the ‘gravamen’ of the Bar Association’s evidence in support of subparagraph (b) of the Particulars to Ground 1 and Ground 2 of the Application. They are as follows:-

The evidence so far suggests – or in fact explicitly reveals – that Ms Coorey has had an ongoing role that Mr Ward is not correct when he says that she has no ongoing role. It is obvious as recently as the handover on 3 September. There are references in the handover notes to the fact that Ms Coorey is a source of advice and direction to these officers involved in the matter (T1776/29-33).

… Ms Coorey is involved in this up to her neck, and Ms Coorey is an active and ongoing participant in this matter. It is a lie for the Department to suggest that she has no ongoing role…(T1777/43-46).

Notwithstanding Deputy Chief Magistrate Syme’s direction or suggestion that Ms Coorey have no further contact, she certainly had no further contact at least in relation to face-to-face supervision, she continued to pull the strings behind the scenes. The evidence shows that quite clearly (T1778/12-17).

So Ms Coorey and the Department have shown complete contempt, I submit, for not only Deputy Chief Magistrate Syme but complete contempt (sic); the fact that they won’t bring her here, and the fact that Ms Coorey is being hidden in this matter… (T1778/19-23).

We do not know what role she’ll have in the future. The evidence of Mr Ward, I can’t remember his exact wording, your Honour, but I cross-examined him on Ms Coorey’s current role and future role. There’s an inference there that she’ll have no future role, but until Ms Coorey is asked it’s simply not believable evidence. Just simply not believable evidence (T1778/36-42).

71 In a short ex tempore ruling given on 6 November 2002, Hogan ADCJ rejected the Barrister’s application for leave to cross-examine Ms Coorey. He stated that he accepted Mr Ward’s evidence that Ms Coorey would take no further part in the management of Victoria’s case. He also stated that he did not regard any evidence that she might give as being of any real value in deciding the principal issues in the case, of which the most important was the nature of the orders that should now be made in relation to Victoria.

72 The District Court judgments. On 27 November 2002, Hogan ADCJ delivered a lengthy written judgment, headed ‘Part 1: Making of a Care Order’. In it, he held that the grounds for making a care order in respect of Victoria had been established. He agreed with the finding of the Children’s Court that Mr X had been the perpetrator of Victoria’s injuries. He found also that Mrs X had been lying when she stated that she did not know who had injured Victoria, though he added that this did not mean that he should disbelieve everything that she had said.

73 On 5 December 2002, his Honour delivered a second judgment, headed ‘Part 2: Assessment of Prospects of Restoration’. In it, he rejected a Care Plan, tendered by DOCS, under which the Minister would have had all aspects of parental responsibility for Victoria, she would have remained in the day-to-day care of foster carers and Mr and Mrs X would have been consulted in relation to her development and therapeutic needs and her religious and cultural beliefs. He held that there should instead be a permanency plan designed in due course to restore Victoria to the care and custody of Mrs X. He indicated that pending full restoration the Minister would retain significant aspects of parental responsibility and he noted ‘the evidence given to the court by Mr Ward that Ms Nada Coorey will not play any part in the management of the affairs of [Victoria], or in the process of restoration’.

74 In this judgment, Hogan ADCJ also repeated his concern that Mrs X had continued to ‘refuse to acknowledge the inevitability of the Court’s findings that [Mr X] caused the injuries and that she knows he did’. In the same paragraph, he observed that throughout the proceedings, the Barrister had appeared to follow Mrs X’s instructions ‘blindly and without discretion’.

75 The final judgment of Hogan ADCJ was delivered on 6 May 2003. It was headed ‘Part IV: Final orders and reasons’. He noted that following his judgment of 5 December 2002 Victoria had been restored to the day-to-day care of Mrs X. He set out detailed orders for her permanent restoration to the care and custody of Mrs X. These were expressed to be dependent on Mrs X giving of a number of undertakings to the Court.

76 Towards the end of this judgment, when dealing with an application that the Barrister had made for costs to be reserved, his Honour referred in the following terms to the conduct of the Barrister during the proceedings:-

There were obvious good reasons why the Department was entitled to continue to resist the making of an order involving restoration in this case. In my view counsel for the mother was quite unjustified, and acted with impropriety, when he suggested that Mr Ward had an improper motive for contesting the appeal. Despite my invitation, and the absence of any evidence whatsoever to justify the making of that imputation, he has not withdrawn it, conduct which I regard with distaste. If there were any order for costs made in this case, it would be against him pursuant to s. 148E of the District Court Act, but upon reflection I have decided not to embark upon the course of invoking that section.

The Bar Association’s submissions

78 With reference to each of the allegations formulated in the Particulars to Grounds 1 and 2 of the Application, Mr Mahony, on behalf of the Bar Association, made submissions to the following effect:-

(a) The transcript showed the Barrister to have made these allegations deliberately in the District Court proceedings.

(b) They were allegations of serious misconduct.

(c) Any belief in their truth that he claimed to have held could not have been based on any material then available to him, having regard particularly to the fact that he had conceded in cross-examination (see [48] above) that relevant evidence was not available to him but that he expected or hoped to adduce it from cross-examination of witnesses called by DOCS.

80 Mr Mahony drew our attention particularly to two passages in the joint judgment. In the first of them (at 200), in the course of a discussion of what the Court described as ‘fundamental’ rules governing barristers, the Court said that a barrister ‘does not, in cross-examination to credit, ask a witness if he has not been guilty of some evil conduct unless he has reliable information to warrant the suggestion which the question conveys’. In the second passage, while outlining the implications of the absolute privilege enjoyed by barristers in relation to defamatory statements made in court, the Court said (at 200-201):-

… from the point of view of a profession which seeks to maintain standards of decency and fairness, it is essential that the privilege, and the power of doing harm which it confers, should not be abused. Otherwise grave and irreparable damage might be unjustly occasioned. The privilege may be abused if damaging irrelevant matter is introduced into a proceeding. It is grossly abused if counsel, in opening a case, makes statements which may have ruinous consequences to the person attacked, and which he cannot substantiate or justify by evidence. It is obviously unfair and improper in the highest degree for counsel, hoping that, where proof is impossible, prejudice may suffice, to make such statements unless he definitely knows that he has, and definitely intends to adduce, evidence to support them. It cannot, of course, be enough that he thinks that he may be able to establish his statements out of the mouth of a witness for the other side.

82 Mr Mahony referred also to Rules 35 and 37 of the Barristers’ Rules, both of which appear in a section headed ‘Responsible use of court process and privilege’. He acknowledged however that the Application did not allege a breach of either of these Rules.

83 Rule 35 (a footnote to which refers specifically to pp 200-201 of the judgment in Clyne) states:-

A barrister must, when exercising the forensic judgments called for throughout the case, take care to ensure that decisions by the barrister or on the barrister’s advice to invoke the coercive powers of a court or to make allegations or suggestions under privilege against any person:

(a) are reasonably justified by the material already available to the barrister;

(b) are appropriate for the robust advancement of the client’s case on its merits;

(c) are not made principally in order to harass or embarrass the person; and

(d) are not made principally in order to gain some collateral advantage for the client or the barrister or the instructing solicitor out of court.

A barrister must not allege any matter of fact amounting to criminality, fraud or other serious misconduct unless the barrister believes on reasonable grounds that:-

(a) available material by which the allegation could be supported provides a proper basis for it; and

(b) the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.

86 In Mr Mahony’s submission, it was no answer to the matters raised in the Application that the Barrister was acting vigorously or fearlessly in the interests of his client, Mrs X. It was still important that any submissions made by him were accurate. A barrister making submissions that amounted to an attack on the reputation of another person was bound to ensure their accuracy and to comply with these provisions of the Barristers’ Rules. Not to do so could constitute professional misconduct or unsatisfactory professional conduct, as was illustrated by Clyne v New South Wales Bar Association and by the Tribunal’s decisions in New South Wales Bar Association v di Suvero [2000] NSWADT 194 and New South Wales Bar Association v Brezniak [2004] NSWADT 154 at [71 – 74]. It was not relevant in this situation, as the Tribunal pointed out in di Suvero at [164], that the barrister held a subjective view that what he said was true. In the present case, the Barrister, like the respondent in di Suvero, ‘lost objectivity and became too personally involved in his client’s cause’ (see the judgment at [174]).

87 A further argument put by Mr Mahony was that the answers given by the Barrister in cross-examination in these proceedings were ‘evasive’, demonstrating a refusal on his part to ‘come to terms with’ the allegations made against him. In his written submissions, Mr Mahony sought to illustrate this proposition by referring to 18 separate passages in the transcript of the Barrister’s cross-examination during the second day of the hearing.

88 In Mr Mahony’s submission, this refusal by the Barrister helped to show that his belief that the material available to him at the time of the District Court proceedings sufficiently supported the allegations that he made in those proceedings was not based on reasonable grounds. Mr Mahony made it clear, however, that he was not challenging the credibility of the Barrister as a witness.

89 On the basis of these arguments, Mr Mahony submitted that the conduct of the Barrister described in the application should be found to be professional misconduct at common law, falling within the accepted definition in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 at 761. It was, he said, conduct that ‘would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency’.

90 Alternatively, Mr Mahony claimed, this conduct should be characterised as unsatisfactory professional conduct ‘of a most serious kind’. In this context, he referred in his written submissions to ss. 497 and 498 of the LP Act, although it is in fact s. 496 that defines unsatisfactory professional conduct.

The Barrister’s submissions

91 The submissions advanced by Mr Williams, counsel for the Barrister, more or less followed the line of argument set out in the Amended Reply (see [9 – 11] above). He argued (a) that the allegations set out in the Particulars to Grounds 1 and 2 of the Application did not accurately reflect what the Barrister actually said in the District Court and (b) in the alternative, that in any event he believed on reasonable grounds that available material by which the allegations pleaded by the Bar Association could be supported provided a proper basis for them.

92 While not contesting the relevance of the cases on which Mr Mahony relied, Mr Williams contended that we should also take careful account of authorities emphasising the obligation of barristers to make serious accusations and use strong language in court where such measures are, to quote from Rule 35 of the Barristers’ Rules, ‘appropriate for the robust advancement of the client’s case on its merits’.

93 In this context, Mr Williams quoted in his written submissions the following sentence from the High Court’s judgment in Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 200:-

Cases will constantly arise in which it is not merely the right but the duty of counsel to speak out fearlessly, to denounce some person or the conduct of some person, and to use such strong terms as seem to him in his discretion to be appropriate to the occasion.

95 In order to illustrate the vigour with which cases might legitimately be conducted by a barrister, Mr Williams handed up pages, not in the official report, of the transcript of the Court of Appeal’s judgment in Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542. In a passage from the judgment of Reynolds JA, his Honour referred to some questions that counsel had asked in cross-examining a doctor in the proceedings below. They included the following: ‘That was a bare-faced lie, was it not?’ and ‘… [your] answer was not an honest answer, was it?’.

96 It must be added, however, that Reynolds JA observed in relation to some of this questioning by counsel that it ‘exceeded not only the bounds of good taste but on occasions of propriety’, that it was ‘needlessly offensive’ and that it ‘fell within a category where there was a discretionary power in the trial judge to forbid such questions whether or not objection was taken’.

97 More detailed aspects of the submissions made by Mr Williams are outlined in the ensuing discussion of the issues raised in this case.

Discussion and conclusions

98 As the matters alleged in subparagraphs (a) of the Particulars to Grounds 1 and 2 of the Application differ materially from those alleged in subparagraphs (b), it is useful to consider these two sets of Particulars separately. In each case, it is also useful, following the approach taken in the Amended Reply, to consider first whether allegations attributed to the Barrister in the Particulars sufficiently reflect what he actually said in the District Court proceedings.

99 The two subparagraphs (a). According to subparagraph (a) of the Particulars to Ground 1, the Barrister alleged that the appeal by DOCS to the District Court was ‘an abuse of process brought for collateral reasons not to do with the child the subject of the proceedings, but with the reputation of an officer about whom adverse findings had been made in the Children’s Court’.

100 According to subparagraph (a) of the Particulars to Ground 2, the Barrister made the same allegation with respect to Mr Ward’s authorisation of the appeal.

101 According to the Bar Association, the passages in the transcript of the District Court proceedings that support these claims in the Particulars are those reproduced in italics at paragraphs [44], [45], [47], [51], [52] and [53] above.

102 The principal argument put by Mr Williams on this aspect of the case was that in the exchange with Hogan ADCJ during which the Barrister used the phrases ‘abuse of process’ and ‘brought for collateral reasons’ (see [45]), he did not allege that the District Court proceedings were in fact an abuse of process or that they had been brought for collateral reasons. Instead, he went no further than to raise the question whether statements to this effect might or might not be correct and he said that his questions to Mr Ward were ‘designed to seek some answers… that may or may not lay a foundation for that submission to this court’. Furthermore, he did not, as matters transpired, advance this proposition by way of formal submission to the Court.

103 We accept these arguments of Mr Williams. In our view, in the statement recorded at [45] above, the Barrister did not make an allegation that the appeal was an abuse of process, nor that DOCS had brought the appeal for collateral reasons. He was merely indicating that he proposed to ask questions which may or may not lay a foundation for a submission that the appeal was an abuse of process. He was not guilty of any misconduct in giving that indication and, provided that appropriate questions were then asked, there would be no misconduct in asking those questions.

104 In our view the Barrister did not make any accusations during the statement recorded at [45] above (cf what Mr Bourke said at [46]), nor did he make an allegation (cf what his Honour said at [47]).

105 We appreciate that the Barrister answered ‘Yes’ to his Honour’s question: ‘Do you have instructions that enable you to make that allegation within the terms of the advocacy rules?’ But, with all due respect to his Honour, we are of the view that there was no occasion for his Honour to ask that question because the Barrister had not made an allegation.

106 In our opinion, the fact that in the passage recorded at [47] above the Barrister answered ‘Yes’ did not convert what he had previously said into an allegation by him that the appeal was not brought in good faith but in fact for collateral reasons.

107 Mr Mahony appeared to accept this during his cross-examination of the Barrister. But in his written submissions, he took up a contrary position.

108 We take a different view of statements made later by the Barrister, during his cross-examination of Mr Ward. Here the Barrister did allege without qualification that Mr Ward’s purpose in authorising the appeal was that of protecting ‘the reputation of an officer about whom adverse findings had been made in the Children’s Court’. We refer here to the passages of cross-examination set out above at [51 – 52], and particularly to the following five questions:-

The Barrister: Did you take into account in any way in your decision to appeal this matter protecting the reputation of a fellow officer?

The Barrister: Isn’t this what this is about, that a magistrate made devastating findings about Ms Coorey, didn’t she?

The Barrister: The application for this appeal, which you authorised, is not about the protection of a child, is it?

The Barrister: This is about protecting a mate, isn’t it?

The Barrister: This is about using the unlimited resources of public funds to win at all costs for the purposes of simply rescuing the tarnished reputation of an officer about whom adverse findings have been made. Isn’t that right? (our emphasis)

110 While not employing the phrases ‘abuse of process’ or ‘collateral purposes’, the Barrister at this point explicitly alleged that the proceedings were instituted by DOCS, pursuant to authorisation by Mr Ward, for the purpose of protecting the reputation of a DOCS officer, Ms Coorey, whom the Barrister imputed to be a ‘mate’ of Mr Ward. The five questions that we have just quoted contain an allegation by the Barrister that this was the predominant, if not the sole, purpose. Such a purpose was indubitably a ‘collateral’ purpose. The Barrister was accordingly alleging an abuse of process by DOCS and by Mr Ward. In contrast to what he said earlier to Hogan ADCJ (see [45] above), he did not merely raise this as a possibility.

111 We turn now to the alternative ground of defence regarding the allegations formulated in subparagraphs (a) of the Particulars. This is that if the Barrister is found to have made these allegations, it should be held that he believed on reasonable grounds that available material by which they could be supported provided a proper basis for them.

112 We should make it clear here that in our opinion it makes no difference whether the words directed to Mr Ward should be viewed as questions, or as statements of fact to which Mr Ward was asked to agree. The end result is the same. If the Barrister had no material available to him which could provide a proper basis for putting these matters to Mr Ward in the manner that he did, then it was improper for him to do so.

113 In considering this matter, it is important to bear in mind that by the time when the Barrister made the allegation that DOCS, upon the authorisation of Mr Ward, had instituted the appeal in order to protect Ms Coorey’s reputation, Mr Ward had made a number of statements during cross-examination, relating to the Children’s Court judgment, the reasons for appealing and the past and present involvement of Ms Coorey in the Victoria case. The Barrister, when considering whether a proper basis existed for his allegation, was entitled to take these statements into account, in addition to the material that was available to him prior to the commencement of the cross-examination.

114 On reviewing all the evidence on this matter, we conclude that the material available to the Barrister that could fairly be said to provide support for his allegation of a collateral purpose (as made by him both against DOCS and against Mr Ward) principally comprised the following:-

1. His observation of Mr Ward’s behaviour at the informal mediation (see [21 – 22] above), notably in so far as this behaviour manifested strong opposition to criticism of Ms Coorey.

2. The length of Magistrate Syme’s judgment, the careful reasoning contained in it and the strength of her criticisms of Ms Coorey and of DOCS (see [23], [25 – 27]). (We note here that in the Bar Association’s written submissions this judgment was described as ‘carefully reasoned’.)

3. The attempt by DOCS, in the immediate aftermath of this judgment, to have it overturned in the Supreme Court without a de novo hearing (see [31], [33]).

4. Mr Ward’s unwillingness in the witness box, despite claiming to have read this judgment and to be aware of the Magistrate’s criticisms of Ms Coorey, to acknowledge how very serious these criticisms were (see [49] and [58 – 60]).

5. Mr Ward’s decision, despite the seriousness of these criticisms, to delegate to Ms Coorey the task of preparing a briefing note for the Minister, coupled with the fact that these criticisms were not mentioned in the briefing note (which Mr Ward read before it was sent to the Minister) (see [59], [64 – 65]).

6. The Barrister’s belief (see [42]), later shown to be correct, that DOCS did not intend to call Ms Coorey as a witness.

7. A degree of equivocation in Mr Ward’s evidence regarding the extent of involvement of Ms Coorey in the Victoria case following the delivery of the Children’s Court judgment (see further discussion below).

116 While making due allowance for these considerations, our conclusion is however that there did exist reasonable grounds on which the Barrister could and did believe that material available to him, by which his allegation of a collateral purpose made against DOCS and Mr Ward could be supported, provided a proper basis for this allegation. To restate this conclusion in terms used by the High Court in the first passage quoted above (at [80]) from Clyne v New South Wales Bar Association (1960) 104 CLR 186 (at 200), the Barrister possessed ‘reliable information to warrant the suggestion’ which his questions conveyed.

117 As we view the matters listed above at [114], they were sufficient to support a belief, based on reasonable grounds, that Mr Ward treated the good standing of Ms Coorey as a matter of overriding concern. At a mediation which, if successful, held out the prospect of a timely resolution of the issues in the Victoria case, he had shown himself unwilling to come to terms with negative comments made about her handling of the case. After the Children’s Court decision, the forensic measures adopted by DOCS, at his direction, would, if successful, have vindicated Ms Coorey’s professional opinions regarding the future care of Victoria while also protecting her from possible further damage to her reputation by being cross-examined. Both in his own cross-examination and in approving the ministerial briefing note prepared by her, he displayed an apparent incapacity or unwillingness to acknowledge that her conduct of the Victoria case had been heavily criticised in a distinctly thorough and carefully reasoned judgment.

118 We recognise that the material referred to at [115] provides some grounds for concluding that the decision by Mr Ward and DOCS to appeal was or may have been prompted by genuine concerns about the decision that the Children’s Court had reached. But we would point out that since by the time of the appeal Mrs X had surrendered her passport (albeit unwillingly) to the Supreme Court, it was no longer possible, at least in the short term, that Victoria could go back to India and come into contact again with Mr X, the perpetrator of her injuries. As to the available evidence regarding the legal advice given to Mr Ward by the legal branch of DOCS, there was at the time nothing to indicate what matters were taken into account in preparing it or as to whether it went any further than to say that an appeal was or might be ‘justified’.

119 We would add that we are not impressed by Mr Mahony’s argument that, simply because the Barrister was ‘evasive’ in cross-examination, we should infer (a) that he had not ‘come to terms with’ the case against him and therefore (b) that beliefs held by him some five years ago were not ‘reasonable’.

120 Our decision on this matter is not that the evidence available to the Barrister was sufficient to prove the allegation of a collateral purpose that he made against DOCS and Mr Ward. As we understand the law on this matter, a barrister need only believe on ‘reasonable grounds’ that the available material provides a ‘proper basis’ for making such an allegation. The available evidence must accordingly have some substance, but need not establish the matters alleged.

121 Finally in this connection, we must deal with a contention by Mr Mahony which at [78] above we summarised as follows:-

Any belief in [the truth of the allegations made by the Barrister] that he claimed to have held could not have been based on any material then available to him, having regard particularly to the fact that he had conceded in cross-examination (see [48] above) that relevant evidence was not available to him but that he expected or hoped to adduce it from cross-examination of witnesses called by DOCS.

123 For these reasons, our decision is that the Bar Association has not established professional misconduct or unsatisfactory professional conduct on account of the matters alleged in subparagraphs (a) of the Particulars to Grounds 1 and 2 of the Application.

124 The two subparagraphs (b). According to subparagraph (b) of the Particulars to Ground 1, the Barrister alleged that in the appeal to the District Court, DOCS had shown contempt for the Deputy Chief Magistrate of the Children’s Court and had lied in relation to the role of Ms Coorey in the ongoing management of Victoria’s case.

125 According to subparagraph (b) of the Particulars to Ground 2, the Barrister made the same allegations with respect to Mr Ward.

126 According to the Bar Association, the passages in the transcript of the District Court proceedings that support these claims in the Particulars are those reproduced in italics at [69] above. They formed part of the Barrister’s submissions regarding the calling of Ms Coorey as a witness.

127 With regard to the claim that the Barrister alleged ‘contempt’ to have been shown by DOCS and Mr Ward for Magistrate Syme, Mr Williams submitted that this meant ‘contempt’ in the vernacular sense – i.e., ‘scorn’ or ‘disrepute’ – not in the legal sense. Mr Mahony did not seem to dispute this proposition, with which we agree.

128 On this basis, we consider that this allegation of ‘showing contempt’, as formulated in subparagraph (b) of the Particulars to Ground (1), did substantially reflect what the Barrister said in the District Court proceedings. On the basis that the Barrister clearly implied that Ms Coorey’s continued involvement in the Victoria case was authorised by, or at least known in general terms to, Mr Ward, who was her supervisor, we consider that the same applies to the allegation of ‘showing contempt’ as formulated in subparagraph (b) of the Particulars to Ground (2).

129 Mr Williams argued that a ‘proper basis’ for these allegations, in relation to which the Barrister believed on reasonable grounds that evidence was available, was provided by the following two considerations. First, although the Magistrate had severely criticised Ms Coorey’s conduct and attitude in handling the Victoria case and had made it clear that Mrs X should not be required to deal with Ms Coorey, Ms Coorey, with the knowledge and apparent approval of Mr Ward, continued to participate in significant ways. We would add that on this question, the evidence given by Ms O’Hehir (see [64] above) was particularly revealing. Secondly, the unwillingness of DOCS to call Ms Coorey as a witness had the consequences that, to quote from Mr Williams’ written submissions, ‘the clear intent of the Magistrate was frustrated and a major aspect of the Magistrate’s conclusions were available to the District Court in the rehearing de novo’.

130 Mr Mahony’s submissions did not specifically respond to these arguments.

131 In our opinion, these arguments do sufficiently establish that, while the Barrister’s language at this point might be viewed as extravagant, he had reasonable grounds for believing that there was a proper basis for the gist of the submission that he was making. The conduct of DOCs to which Mr Williams referred showed that it wanted to deny or ignore the clear implications of the Magistrate’s findings regarding Ms Coorey. In this conduct Mr Ward was sufficiently involved to justify the same conclusion regarding him.

132 The second claim made in subparagraphs (b) to Grounds 1 and 2 of the Particulars was that the Barrister alleged that both DOCS and Mr Ward had lied in relation to the role of Ms Coorey in the ongoing management of Victoria’s case.

133 The relevant statement by the Barrister formed part of his submission to the District Court in support of his application for leave to cross-examine Ms Coorey (see [69]). It was in these terms: ‘It is a lie for the Department to suggest that she has no ongoing role.’

134 In interpreting this statement, it is in our opinion important to take account of two other passages in this submission by the Barrister. They were as follows

Mr Ward is not correct when he says that she has no ongoing role.

The evidence of Mr Ward, I can’t remember his exact wording, your Honour, but I cross-examined him on Ms Coorey’s current role and future role. There’s an inference there that she’ll have no future role, but until Ms Coorey is asked it’s simply not believable evidence. Just simply not believable evidence.

136 Placed in context, what the Barrister was arguing was therefore that it could not be ascertained what future role Ms Coorey would have in the Victoria case until she was cross-examined; that the inference that might be drawn from Mr Ward’s evidence that she would have no role should not be drawn; and that the evidence to support that inference was simply not believable.

137 This view of the matter receives support from the fact that Mr Ward’s evidence regarding Ms Coorey’s role was noticeably equivocal. On two occasions (see [57] and [58] above), he said in apparently absolute terms that she had no current role, but then almost immediately he qualified this answer significantly once the Barrister had disputed the truth of what he had said.

138 Taking these matters into account, we conclude that the statement by the Barrister attributing a ‘lie’ to DOCS, when properly interpreted, amounted only to a claim that in so far as the evidence given by Mr Ward included a ‘suggestion’ that Ms Coorey had ‘no ongoing role’, that suggestion should not be accepted.

139 As we have just pointed out, Mr Ward himself, on two occasions, conceded the untruth of this ‘suggestion’. It follows that at the time when the Barrister made the submission of a ‘lie’ by DOCS, there existed reasonable grounds on which he could and did believe that material available to him, by which this submission could be supported, provided a proper basis for his making the submission.

140 For these reasons, our decision is that the Bar Association has not established professional misconduct or unsatisfactory professional conduct on account of the matters alleged in subparagraphs (b) of the Particulars to Grounds 1 and 2 of the Application.

141 In these circumstances, the Application is dismissed.

142 Mr Williams submitted that the Bar Association should be ordered in such event to pay the Barrister’s costs. In proceedings such as these, costs are regulated by s. 566 of the LP Act. A requirement of ‘special circumstances’ (see s. 566(3)) must be satisfied if a respondent is to be awarded costs.

143 We accordingly direct as follows:-

(a) Any application for costs in relation to these proceedings, together with supporting submissions, must be filed and served within 28 days of the date of these reasons.

(b) Within a further 28 days, the opposing party is to file and serve submissions in reply.

(c) The matter of costs is to be resolved ‘on the papers’, under s. 76 of the Administrative Decisions Tribunal Act 1997, unless either party applies, giving reasons, for a hearing to take place.